BEATTY, Ore. — The Sycan River is one of dozens of tributaries that join to form Upper Klamath Lake in Southern Oregon. It’s a shallow lake that acts as the headwater for the Klamath River.
Tributaries like the Sycan supply the freshwater that is critical to the lake’s three species of native suckerfish. Farther downstream, as the Klamath flows through the redwoods of northern California, that water supports runs of chinook and coho salmon.
But first, the Sycan River flows past Becky Hyde’s ranch.
“We irrigate out of the Sycan River, and water makes things magical wherever you end up putting it,” Hyde says.
Her ranch is a square of bright green that stands out in the dry juniper and sagebrush.
Hyde has a water right, or in other words, a permit from the state to take water from the river every summer for her 500-acre ranch. Hyde uses the water to grow grass to feed beef cattle, marketed as Country Natural Beef.
Hyde’s cattle are quiet and content, and she greets them warmly: “Hey boss. Hey babies.”
Until last week, a giant pivoting sprinkler irrigated the pasture where Hyde is raising about 80 one-year-old cows.
Now Hyde is trying to figure out somewhere else to move these young cattle. She is one of many ranchers along the upper tributaries of the Klamath River whom the state ordered ordered to stop irrigating. The move came after the Klamath Indian Tribes, just downstream, said they needed more water left in the tributaries to protect their fishery.
Hyde is upset, but she also respects the tribes’ right to the water. Hyde has spent the last decade encouraging her neighbors to collaborate with the tribes on a river restoration strategy.
“This is a tragedy for this community and our family personally. But it is also a wake-up call to say people beside agriculture have a water right,” she says.
First in Time, First in Right
“When all of this country was developing, no one was really thinking about fish or wildlife,” says
attorney Bill Ganong. He represents the Klamath Irrigation District and a number of other clients in the Klamath Basin; he inherited his water law practice from his father and his grandfather.
The Klamath Basin transformed from a vast ice age lake into a series of connected lakes and wetlands the stretch out across 25 miles. They’re home to migrating ducks and geese.
Starting in the late 1800s, the government encouraged draining the marshland and converting it to farms and ranches. As a result, Ganong says, the state of Oregon handed out hundreds of water rights certificates in the Klamath Basin.
“You don’t own the water. Your water right is a right to use it; it’s a right of use,” Ganong explains.
In 1988, the Short Nose and Lost River Suckerfish that live in Upper Klamath Lake were listed as endangered, and Ganong says the Endangered Species act required federal agencies to leave more water in stream for fish — leaving less available for irrigation.
In an arid place like the Klamath Basin, there often isn’t enough water available for everyone who has a right to use it. And in the Western U.S., according to what’s known as the prior appropriation doctrine, the person with the oldest water right gets all the water that they are entitled to first.
But Ganong says there was a problem in the Klamath.
Water Wars: Who Controls The Flow?
This EarthFix story was part of NPR’s coverage of water conflicts, which you can read here.
“Water use had begun at a time when there was no formal process for filing an application. So the state had to come up with a system for looking backwards,” he says.
More than 700 farmers and groups, including the Klamath Tribes, all claimed that their water rights were older than the state’s records, which only go back to 1909.
In 1975, the state began the process of sorting through and verifying the claims- called an adjudication. Similar water disputes have taken place on the Snake river in Idaho and in the Yakima basin in Washington.
In the Klamath, groups spent 38 years contesting who holds the senior water rights on tributaries like the Sycan River.
Ganong says the state considered evidence ranging from old maps to records in pioneer diaries to notes in bibles - and a treaty the tribes signed in 1864.
The Oregon Water Resources Department wrapped up the first phase of the adjudication this year. The date of the tribe’s right? Time immemorial.
A Fishery in Trouble
Every spring, the Klamath tribes hold a ceremony to celebrate the return of the suckerfish. The now endangered suckerfish, which look a little like miniature sharks with a vacuum cleaner for a mouth were once the staple food of this tribe.
Don Gentry is Chairman of the Klamath Tribes. He says they’ve not been able to fish for suckerfish for the last 27 years.
“The condition of our fish is just so dire,” he says. “They’re on the brink of extinction. And I believe those fish are an indicator of the health of the watershed.”
State adjudicators and federal courts found the the tribes held a senior water right because they reserved the right to hunt, fish, and gather on their lands in an 1864 treaty. The Tribes were terminated by the federal government in the 1950s and their reservation was divided up and sold off, but adjudicators found that the tribe never gave up its right to hunt and fish- and by extension, is water right.
Gentry says the decision to shut off water on neighboring ranches was difficult but the Klamath Tribes have a responsibility to ensure that suckerfish- and the river ecosystem itself — survive.
And the tribes are in negotiations with ranchers to come up with a better plan to share water in dry years.
The tribes have already signed a settlement — the Klamath Basin Restoration Agreement, or KBRA — with hundreds of potato and onion farmers who share an irrigation canal near Klamath Falls, and are part of the Bureau of Reclamation’s Klamath Irrigation Project.
Gentry says the tribe is honoring the settlement, and won’t ask the Project farmers to shut off their water this year.
“We as a people have shown our willingness to provide security and economic stability through our work in support of the KBRA and settlement,” he says.
But while the row-crop farmers have chosen to settle with the tribes, Gentry says they haven’t reached a deal with cattle ranchers along the upper tributaries of the Klamath. One element of the settlement — a plan to remove four aging dams owned by power company PacifiCorp — has proved politically unpopular in the basin. Some ranchers also plan to challenge the results of the state adjudication in court.
“They say we have an over-allocated source of water. I disagree,” says Tom Mallams, a rancher elected to the Klamath County Board of Commissioners on a platform of opposition to settlement and dam removal.
“I think the over-allocation has come with new allocations that were never historically here,” Mallams says.
Mallams and a few dozen other ranchers say the plan to file legal challenges to the tribes’ water right, and they’ve asked a Klamath County judge to issue a stay that would prevent tribes and the Klamath Project irrigators from exercising their senior rights and shutting down junior irrigators this summer.
Mallams plans to testify when the Senate holds a committee hearing on the Klamath Basin water shortage Thursday.
Rancher Becky Hyde is also testifying. She plans to ask Congress to support the KBRA, the settlement between some farmers and the tribes.
“A lot of people care about this river and what’s happening. And so we need a solution. Because it is senseless to go on like this,” she says.
The Klamath Basin Restoration Agreement could be a hard sell to members of the Senate; it would cost about $50 million a year to implement.